The U.S. Justice Department on Wednesday fired back at six lobbyists who are in the U.S. Court of Appeals for the D.C. Circuit challenging the Obama administration ban on federal lobbyists serving on agency boards and commissions.
The D.C. Circuit should uphold the ban that a Washington federal trial judge, Amy Berman Jackson, found constitutional last year, Michael Raab, an assistant director of the DOJ Civil Division appellate staff, wrote yesterday in the government's opening brief in the appellate court.
Mayer Brown special counsel Charles Rothfeld and associate Joseph Minta, who represent the lobbyists, wrote in their brief in May that the Obama administration prohibition has "punished" their clients and discouraged lobbying, an activity the Constitution protects. Rothfeld, a veteran Supreme Court advocate, practices in appellate litigation.
The lobbyists aren't entitled to ITAC memberships, Raab wrote in the government brief. The Obama administration hasn't infringed on their constitutional right to petition the government, either, he added.
"It is entirely reasonable to structure the ITACs to enable the government to listen to individuals who have experience in the industry but who are not registered lobbyists, and are thus not otherwise as actively engaged in the political and administrative process," wrote Raab, who is handling the appeal with Mark Stern, a DOJ Civil Division appellate ligation counsel.
The plaintiffs are Erik Autor, who represented the National Retail Federation on an advisory board; Nate Herman, who represented the Travel Goods Association on an advisory board; Cass Johnson, who represented the National Council of Textile Organizations on an advisory board; Stephen Lamar, who represented the American Apparel & Footwear Association on an advisory board; William Reinsch, who was "interested in applying to represent the National Foreign Trade Council" on an advisory board; and Andrew Zamoyski, who represented the Society of Chemical Manufacturers and Affiliates on an advisory board, according to the lobbyists' September 2011 complaint.
No argument date for the appeal is set. The lobbyists' lawyers are required to file their response to the government by June 19.
The White House in June 2010 issued a memorandum that directed federal agency heads to stop appointing or reappointing federally registered lobbyists to advisory boards and commissions.
The final guidance, which took effect in November 2011, only encompasses individuals who meet registration requirements specified by federal lobbying disclosure law. The guidance says agencies can use congressional lobbying disclosure databases to determine whether an individual is a federal lobbyist.
Lobbyists can serve out the remainder of their terms on boards or commissions if they were appointed before June 18, 2010. But agencies had to request the resignation of appointees who weren't lobbyists before that date and later started lobbying. Lobbyists cannot obtain a waiver to sit on a board or commission.